By THE EDITORIAL BOARD

June 24, 2013

Perhaps the best that could have been expected from the Roberts court was a compromise on the affirmative action case, Fisher v. University of Texas, Austin. That seems to be the result in the 7-1 decision, which affirms the Supreme Court’s 2003 decision in Grutter v. Bollinger that explicitly allowed race to be a factor in admissions decisions, as long as it was not the determining factor.

Justice Anthony Kennedy, who wrote the majority opinion in Fisher and opposed the Grutter decision, kept the Texas ruling narrow, sending the case back to the lower courts to determine whether the university properly applied the principles laid out in Grutter. That counts as a victory — for now — for the freedom of colleges and universities to determine what education entails and how to achieve their goals.

The Grutter case, with a majority opinion by Justice Sandra Day O’Connor, allowed public universities to consider race to achieve a “critical mass” of minority students. Justice Kennedy’s U.T. decision accepts that rationale, and affirms a central principle: universities are allowed deference in their “education judgment that diversity is essential to their educational mission” and in “the decision to pursue educational benefits that flow from student body diversity.”

But Justice Kennedy made it clear that once this compelling goal was established, the institution must still prove that it needed to rely on race to achieve this goal. The lower courts reviewing a diversity plan must be satisfied that no workable race-neutral alternative would produce the education benefits that diversity provides. In this case, Justice Kennedy said, the Court of Appeals for the Fifth Circuit did not apply strict scrutiny to the Texas plan to see how its process actually worked, but largely accepted the university’s “good faith” judgment.

Justice Clarence Thomas wrote a separate concurring opinion saying he would have overruled Grutter, and Justice Antonin Scalia wrote a short statement saying he still opposed the Grutter ruling, but accepted the majority opinion that the lower courts did not review the plan under the right analysis.

Justice Ruth Bader Ginsburg, writing in dissent, said there was no need to require the lower courts to take another look, since the “university’s admissions policy flexibly considers race only as a ‘factor of a factor of a factor of a factor’ in the calculus.” Still, as she points out “the court rightly declines to cast off the equal protection framework settled in Grutter.”

For now, the profound educational, social and economic benefits from racial and ethnic diversity ensured by Grutter live for another day — or case. That may come as soon as next term, when the court is scheduled to review a voter-approved amendment to Michigan’s Constitution that prohibits public universities from considering race as an admissions factor.